Air Date: Week of November 27, 1998

Steve Curwood talks with Robert Kennedy, Jr. about the legacy of his recently deceased friend Stephen Duggan, a pioneer in environmental law. For Duggan, a successful Wall Street lawyer, perhaps his most lasting legacy is a legal case he sparked that set the precedent for modern environmental lawsuits. The case involved scenic Storm King Mountain overlooking the Hudson River, versus the Consolidation Edison power company. Robert Kennedy Junior is an environmental lawyer with the Natural Resources Defense Council, and a professor at the Pace University School of Law.

Transcript

CURWOOD: It's Living on Earth. I'm Steve Curwood. This month, friends and admirers have been giving thanks for the life of Stephen Duggan, who recently died at the age of 89. Mr. Duggan was a successful Wall Street lawyer who helped found the Natural Resources Defense Council. But perhaps Mr. Duggan's most lasting legacy is a legal case he sparked that set the precedent for modern environmental lawsuits. The case involved the beautiful and strategic headland over the Hudson River called Storm King Mountain. Consolidated Edison, the power company, wanted to chop off the top of the mountain to make a reservoir for electric power. This enraged Mr. Duggan, who used his wealth and influence to take on Con Ed. Here now to continue telling the story is Robert Kennedy, Jr., an attorney for the Natural Resources Defense Council.

KENNEDY: Storm King is one of the most spectacular geological sites east of the Mississippi. It's a sugarloaf mountain that rises, I think, 1,700 feet directly out of the banks of the Hudson River. And it's so spectacular that during the 19th century it became almost an obligatory subject for the Hudson River School of painters. And it was also an important historical site. During the Revolutionary War, Washington went and built West Point on the Hudson River, and the Patriot's stronghold was the Hudson Highlands, and the centerpiece of the Highlands was the natural fortress of Storm King Mountain.

CURWOOD: What happened? What did Consolidated Edison want to do to this place?

KENNEDY: Con Ed proposed to blast I think a 6 billion gallon reservoir out of the top of Storm King. It was going to essentially decapitate the mountain. And people like Stephen Duggan had problems with the idea that this national historical monument was going to be destroyed for economic gain of the utility. In 1965 they formed Scenic Hudson Preservation Committee, and they said we're going to stop this project.

CURWOOD: But they had a legal problem, though, didn't they?

KENNEDY: Well, the big legal problem at that time was the ancient doctrine of standing, which comes to us through common-law and from the United States Constitution. Now that doctrine had kept environmentalists out of court since the beginning of time because, for example, if somebody came up with a proposal, let's say, to fill the Grand Canyon with old automobile tires, and some environmentalists said well, we're going to sue them because we love the Grand Canyon, the first question the court would ask is, well, do you own the Grand Canyon? And the environmentalists would say of course not. And the courts would say well, then, you don't have standing to sue, because you can't show a concrete stake in the outcome. And what happened in this case, a 3-judge panel from the Court of Appeals in New York City, after only about 3 months of litigation, held that if you have an interest in a publicly-owned resource, like a river or a park, if you canoe on it, fish on it, hike on it, and somebody is going to do some injury to it that is going to injure those aesthetic values of yours or those recreational values, that you have standing to sue. And that Storm King doctrine was the first case in modern environmental law. In fact, the phrase "environmental law" was coined, came into use a few months after that case was passed.

CURWOOD: What was the particular genius of Mr. Duggan in this case? What is it that he thought of that nobody else had really thought of before?

KENNEDY: Well, people, you know, there had been environmental battles in this country, really, since the 1840s. Washington Irving led a battle to try to stop the railroad from constructing tracks along the banks of the Hudson River, for environmental reasons, for all the reasons that we give today. But, you know, Stephen Duggan came along at a time when America was ready. He realized very early in the fight because he, you know, they had gone out and they'd been very sophisticated. They got the best law firms. They got the best public relations firms. They did an environmental issue in a way that it's never been done before. And it got a huge following. Con Ed shareholders from all over the country began sending their dividend checks to Stephen Duggan to cash to support his fight against Con Ed. And, you know, Con Ed as a result became the company that Americans love to hate.

CURWOOD: Now, you're currently engaged in your own work for the Natural Resources Defense Council, and protecting habitats, rivers, and watersheds. How does your work benefit from Mr. Duggan's pioneering efforts?

KENNEDY: Well, I bring lawsuits against polluters. And I've brought over 150 successful legal actions with my partner, Carl Copeland, over the past decade. And we couldn't have brought any of those actions against Hudson River polluters or polluters anywhere else in the country if it hadn't been for the Storm King case. And that was Stephen Duggan's legacy.

CURWOOD: Well, I want to thank you for taking all this time with us today.

KENNEDY: Sure. Thanks for having me.

CURWOOD: Robert Kennedy, Jr., is an environmental lawyer with the Natural Resources Defense Council and a professor of law at the Pace University School of Law. Stephen Duggan helped found the NRDC. He died recently at the age of 89.